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Before the
Federal Communications Commission
Washington, D.C. 20554
In the Matter of )
)
VOICESTREAM PCS I LICENSE L.L.C. ) File No. EB-00-PO-272
)
Bellevue, Washington ) NAL/Acct. No.
200132920001
FORFEITURE ORDER
Adopted: April 2, 2001 Released: April 4, 2001
By the Chief, Enforcement Bureau:
I. Introduction
1. In this Forfeiture Order (``Order''), we issue a
monetary forfeiture in the amount of twenty-one thousand dollars
($21,000) against VoiceStream PCS I License L.L.C.
(``VoiceStream''), for willful violation of Section 17.4(g) of
the Commission's Rules (``the Rules'').1 The noted violations
involve VoiceStream's failure to post antenna structure
registration (``ASR'') numbers at eleven antenna sites.
2. On February 13, 2001, the Enforcement Bureau released a
Notice of Apparent Liability for Forfeiture (``NAL'') against
VoiceStream in the amount of twenty-four thousand dollars
($24,000).2 VoiceStream filed its response on March 13, 2001.
II. Background
3. During routine inspections of antenna structures owned
by VoiceStream on June 9, June 21, June 22 (two structures), June
28, July 27, December 15 (five structures), and December 18,
2000, agents from the Commission's Portland, Oregon, Resident
Agent Office (``Portland Office'') observed that the ASR numbers
for twelve antenna structures were not posted. On June 12, June
22, June 23, July 14 (two notices), July 27, December 20 (five
notices) and December 22, 2000, the Portland Office issued
Official Notices of Violation (NOVs) to Voice Stream for
violation of Section 17.4(g) of the Rules. In its responses to
the NOVs, VoiceStream indicated that it had corrected the
violations by posting the antenna structures' ASR numbers.
III. Discussion
4. As the NAL explicitly states, the Enforcement Bureau
assessed the proposed forfeiture amount in this case in
accordance with Section 503 of the Act,3 Section 1.80 of the
Rules,4 and The Commission's Forfeiture Policy Statement and
Amendment of Section 1.80 of the Rules to Incorporate the
Forfeiture Guidelines, 12 FCC Rcd 17087 (1997), recon. denied, 15
FCC Rcd 303 (1999) (``Policy Statement''). Section 503(b) of the
Act5 requires that, in examining VoiceStream's response, the
Commission take into account the nature, circumstances, extent
and gravity of the violation and, with respect to the violator,
the degree of culpability, any history of prior offenses, ability
to pay, and other such matters as justice may require.6
5. Section 17.4(g) of the Rules requires display of the ASR
number ``at a conspicuous place so that it is readily visible at
the base of the antenna structure.''
6. VoiceStream, for the first time, contends that the ASR
number (1047489) was properly posted at its Keizer, Oregon,
antenna site. VoiceStream states that, on an unspecified date
following its receipt of the NOV issued for failure to post this
ASR number, its Operations Manager visited the Keizer, Oregon,
site and observed that a sign indicating the ASR number was
``properly attached to the chain link fence surrounding the site
at a location clearly visible to the public.''7 On this basis,
VoiceStream argues that no forfeiture should be imposed for lack
of signage at the Keizer, Oregon, site. We disagree. The ASR
number may have been posted on the date of the Operations
Manager's visit but VoiceStream has submitted no evidence to
suggest that it was posted at the time of the FCC agent's
observations on December 15, 2000. On that date, the FCC agent
walked around the fence surrounding the antenna structure,
observing all four sides of the fence as well as the base of the
antenna structure, and saw no sign indicating the ASR number. We
conclude that, on December 15, 2000, ASR number 1047489 was not
posted. Accordingly, we impose a monetary forfeiture for
VoiceStream's failure to post ASR number 1047489.
7. It is undisputed that the ASR numbers were not properly
posted, as required by Section 17.4(g) of the Rules, for the
other eleven antenna structures inspected by FCC agents.
However, VoiceStream propounds a number of arguments for
mitigation.
8. VoiceStream's principal argument for mitigation is that
the base forfeiture amount for failure to post an ASR number
should be $1,000, not $2,000. The Bureau's proposed forfeiture
was based on the Commission's decision in American Tower Corp.,8
in which the Commission determined that a $2,000 base forfeiture
amount was appropriate for this type of violation.9 Because the
Bureau is bound by the Commission's determination, we will not
address VoiceStream's argument in this case.
9. VoiceStream asserts, for the first time, that, because
the antenna structure located at 4400 NE Broadway, Portland,
Oregon (ASR number 1040956), is less than 20 feet in height, it
is exempt from the Federal Aviation Administration's notification
requirement and, therefore, from the tower registration
requirements.10 VoiceStream argues that, since it voluntarily
registered this antenna structure, the Commission should not
impose a monetary forfeiture for failing to post its ASR number.
We agree.
10. VoiceStream also asserts that the ASR number for its
antenna structure at 3025 Industrial Way, NE, Salem, Oregon, was
not posted because the sign indicating the ASR number (1040800)
was vandalized and fell to the ground. VoiceStream suggests
mitigating the proposed forfeiture for failure to post this ASR
number from $2,000 to $250. While mitigation to $250 is not
warranted, we find that mitigation to $1,000 is appropriate.
11. Finally, VoiceStream argues that the proposed
forfeiture should be mitigated because it has ``extensive
compliance policies and processes in place to ensure that FCC
registration is completed for every site so required. Further,
VoiceStream promptly installed signs at the sites in question,
and its policies will work to detect those . . . signs that have
been weather damaged or vandalized in the future.'' This
argument lacks merit. After, June 12, 2000, when the Portland
Office first notified VoiceStream that it was violating Section
17.4(g) of the Rules, FCC agents observed ten more violations
(not counting the antenna structure at 4400 NE Broadway,
Portland, Oregon) of that rule over a six month period. Thus,
even six months after the initial notification, VoiceStream did
not have effective compliance policies in place and no
mitigation is warranted on this basis.
12. We have examined VoiceStream's response to the NAL
pursuant to the statutory factors set forth above, and in
conjunction with the Policy Statement as well. As a result of
our review, we conclude that VoiceStream has provided a
sufficient justification for mitigating the proposed forfeiture
amount to $21,000, but has not provided a sufficient
justification for any further mitigation.
IV. Ordering Clauses
13. ACCORDINGLY, IT IS ORDERED THAT, pursuant to Section
503(b) of the Act, and Sections 0.111, 0.311 and 1.80(f)(4) of
the Commission's Rules,11 VoiceStream IS LIABLE FOR A MONETARY
FORFEITURE in the amount of $21,000 for willful violation of the
provisions of 17.4(g) of the Rules.
14. Payment of the forfeiture shall be made in the manner
provided for in Section 1.80 of the Commission's Rules12 within
30 days of the release of this Order. If the forfeiture is not
paid within the period specified, the case may be referred to the
Department of Justice for collection pursuant to Section 504(a)
of the Act.13 Payment may be made by mailing a check or similar
instrument, payable to the order of the ``Federal Communications
Commission,'' to the Federal Communications Commission, P.O. Box
73482, Chicago, Illinois 60673-7482. The payment should note the
NAL/Acct. number referenced above. Requests for full payment
under an installment plan should be sent to: Chief, Revenue and
Receivables Operations Group, 445 12th Street, S.W., Washington,
D.C. 20554.14
15. IT IS FURTHER ORDERED THAT this notice shall be sent,
by certified mail, return receipt requested, to Vice President,
Legislative and Regulatory Affairs, for VoiceStream PCS I License
L.L.C., Brian O'Connor, at 401 9th Street, N.W., Suite 550,
Washington, D.C. 20004.
FEDERAL COMMUNICATIONS COMMISSION
David H. Solomon
Chief, Enforcement Bureau
_________________________
1 47 C.F.R. § 17.4(g).
2 Notice of Apparent Liability for Forfeiture, NAL Acct. No.
200139220001 (Enf. Bur., released February 13, 2001).
3 47 U.S.C. § 503.
4 47 C.F.R. § 1.80.
55 47 U.S.C. § 503(b).
66 47 U.S.C. § 503(b)(2)(D).
7 Compare VoiceStream's January 19, 2001, NOV response,
stating, in pertinent part, ``This is the response to the
violation . . . for [the] VoiceStream cell site at 930 Chemawa,
Keizer, Oregon. Per FCC records and VoiceStream, the antenna
structure under Registration # 1047489 was missing proper tower
registration signage.''
8 American Tower Corp., FCC 01-9 (rel. Jan. 16, 2001).
9 Id. at ¶ 9.
10 See 47 C.F.R. §§ 17.4(a) and 17.14(b). VoiceStream made
no mention of this argument in its response to the Notice of
Violation regarding the Portland antenna structure.
11 47 C.F.R. §§ 0.111, 0.311, 1.80(f)(4).
12 47 C.F.R. § 1.80.
13 47 U.S.C. § 504(a).
14 See 47 C.F.R. § 1.1914.